OUTLINE PROFILE:

Author:  	Damien Falgoust <dfalgoust@mail.utexas.edu>
School:		University of Texas
Course:		Constitutional Law
Year:		Spring 1997
Professor:	Prof. Lino Graglia
Book:		Graglia Docs 1997
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SOURCE OF THIS OUTLINE:

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A MESSAGE FROM THE AUTHOR:

This outline is e-mailware!  While there is no cost for using the outline, you must drop me a line at dfalgoust@mail.utexas.edu to tell me what you think, if it helped you, etc; it’d also be nice if you dropped by my web page at http://www.geocities.com/NapaValley/3578/ and signed my guest book.

Feel free to redistribute this outline unmodified to anyone who may find it useful.  This outline is provided “as is” and I make no promises as to its accuracy (it worked for me, your mileage may vary).  Good Luck on exams!

Damien Falgoust
University of Texas School of Law

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CONSTITUTIONAL LAW OUTLINE
Prof. Lino Graglia – Spring 1997

I.	General Principles for Constitutional Law
A.	Key Provisions of the Constitution
1.	Article 1, Sec. 8 – Powers Reserved to Congress (includes taxing (cl.1) and commerce (cl.3) power
2.	Article 1, Sec. 9 – Limits on U.S. Congress
3.	Article 1, Sec. 10 – Limits on State Legislatures
4.	Article 3, Sec. 2 – Extent of Judicial Power
5.	Article 5 – Amending the Constitution (2/3 of both houses or petition of 2/3 of the states; ratification requires ¾ approval by the states
6.	The 14th amendment (due process for the states)
B.	Definitions of Types of Governments
1.	Government – Why a government?
a)	Division of Labor – in an anarchy, everyone has to do everything for themselves
b)	Control of the “animalistic” nature of people – protecting property rights, contract rights, etc. (prevent free riding)
c)	“Prisoner’s Dilemma” – if everyone acts solely for their own gratification, the effect is ultimately detrimental to all.
2.	Democracy
a)	Basically, rule of the people; in the U.S., representative democracy (meaning elected representatives vote instead of the people voting directly).  [Basic Civics]
b)	Graglia is heavily in favor of democracy, even to the exclusion of individual rights – that is, one of his biggest beefs is the court denying the will of the people.
(1)	Thus, the courts propagate a liberal agenda never approved by the people via judicial activism under the guise of finding a law unconstitutional (even if it isn’t).
(2)	Graglia has less of a problem with a court ignoring the unconstitutionality of a law, since at least then the will of the people is being done.
3.	Federalism
a)	Basically, a government of divided power, with local control predominating; basically the federal government is only supposed to legislate in certain well-defined areas, leaving the rest to the states
(1)	The idea is the federal government only operates where it has to, as in trade and defense, taking advantage of economies of scale.
b)	Federalism as Fiction
(1)	Graglia believes that federalism, while looking good on paper, is fundamentally unworkable.  “Everyone loves federalism except when it gets in the way.”
(2)	The basic problem is that one side or the other (federal v. state) has to control certain key things, like commerce.
(3)	That power over time inevitably develops into all power, since everything has some kind of impact on it.
c)	Separation of Powers
(1)	Graglia: it really just slows down policymaking
4.	Constitutionalism (Why a Constitutional Government?)
a)	Why permit control of government by the dead?  Why would people in a democracy set up a government that limits their own power?
(1)	Passion vs. Calm
(a)	Hamilton argues in the Federalist Papers that a constitution would ensure protection from “passing passions.”
(b)	Jefferson criticized the idea of “the living being ruled by the dead.”
(c)	The real problem: How to know if you’re in a time of calm?  (What if the founders weren’t?  The constitution was written after a revolution, after all.)
(i)	Graglia: it is a paradox to have the majority abdicate control to a prior majority – all rules come from the majority, so what can rule them?
(2)	Better reasons for constitution (for limiting later majorities)
(a)	Structural defects in society
(i)	Facilitates transactions (by preventing monopolies and other restraints on trade)
(ii)	Partially checks special interests:
(a)	Term Limits – local folks like their rep because he brings home pork; but pork isn’t good for the rest of the country 
(iii)	Acts as a moral exhortation for guidance in the passage of laws 
b)	The passage of the Constitution
(1)	Principle reasons for the constitution: remove restraints on trade, regulate foreign trade, and provide for foreign defense
(2)	Graglia: it had nothing to do with rights
(a)	The only “right” in the Constitution itself is the right for bankers to collect their debts (since states can’t cancel them)
(3)	Patrick Henry (anti-federalist) predicted commerce power would become all power.
(4)	Madison was sneaky – he bent to the anti-federalists desire for a Bill of Rights, then wrote them all himself.
C.	The Study of Law (Justice Holmes)
1.	Study of Law = Prediction of what a court will do.
2.	Legal right/duty cannot be defined independent of its consequences.  (Consequences create the right/duty)
a)	Law is coercion, not morality
3.	Distinguish between ethics and the law – should look at the law through the eyes of a “bad” man, because he doesn’t care for ethical norms but cares very much how an adverse judgment will affect him.
a)	Thus, for instance, breach of contract isn’t “wrong,” it’s just a choice – the result of a breach is the law
D.	Judicial Activism 
1.	Briefly, Graglia hates it.  It defeats the ideal of a democracy.
2.	It’s really popular in liberal academia, though – since most activism tends to be liberal, most academics like the idea of the court slapping down “bad” lawmakers.
3.	Bork: Should use framers intent, since the force of the Constitution is derived from the original ratification.  
a)	Activism reduces democracy
b)	Natural law is stupid (you can defend anything)
c)	Activism is around because without it there wouldn’t be much for the court to do (God forbid it leave policymaking decisions to the “great unwashed”) 
4.	Brennan: Using framer’s intent is arrogant
a)	We can’t know framer’s intent (Whose intent?  The writers, the congressional disputants, or the ratifiers?  No one agreed!)
b)	To restrict it to 1789 values would ignore all social progress.
c)	“Majoritarianism” = tyranny of majority over minority
5.	Graglia: Framer’s intent rules!
a)	Using framers intent is only to say that judges should apply, and not make the law.
b)	At issue is who should set U.S. policy: the court or the people.
(1)	Brennan is the “most important government official” (since he’s dictated so much of U.S. policy) (Lino at his sarcastic best)
c)	Constitutional law has nothing to do with the Constitution (at least thanks to guys like Brennan)
d)	Brennan’s objections could be make regarding interpretation of almost any law.
e)	Brennan (and his elitist colleagues) just don’t want the people to have the last word.
f)	Best defense to Brennan’s parade of horribles is the good sense of the American people.  (Framer’s intent is an impediment to social progress only if progress = enactment of Brennan’s view)
II.	Judicial Review
A.	General Notes on Judicial Review
1.	Nothing in the constitution expressly spells out the power of judicial review.
2.	National Supremacy – Article 6, Section 2 makes the federal government superior to the states (judicial review stems partially from this)
3.	“This Constitution and the laws of the United States which shall made in pursuance thereof…shall be the supreme law of the land; and the judges of every state shall be bound thereby.” 
4.	History – The Federalist #78
a)	Hamilton argues for judicial review in the Federalist #78
(1)	This, at least, is a reason for its presumed validity, since one of the framers recognized it as a power.
(2)	Federalist #78 was written in response to anti-federalist article stating fears of an all-powerful judiciary
b)	Hamilton contends that the judiciary is the weakest of the three branches
(1)	Legislative controls the purse
(a)	Graglia: what of KC judge ordering school districts to build?
(2)	Executive controls sword
(a)	Graglia: but all who hold the sword have obeyed the court!  (Jackson, Lincoln, FDR all threatened not to, but did anyway)
B.	Marbury v. Madison and the establishment of judicial review
1.	The Facts 
a)	Adams (a federalist) was the 2nd President; Jefferson (an anti-federalist) won the next election.  Anti-federalists also take control of Congress.
b)	In a flurry to retain power in at least one branch, the Federalists pass the Circuit Court Act of 1801
(1)	Prior act, the Judiciary Act of 1789, created the federal lower court system
(a)	It divided the country into 3 circuits, with 2 justices per circuit (6 total Supreme Court justices at the time); it also created circuit courts, composed of one Supreme Court justice and two district court justices
(2)	1801 act doubled the number of circuit judges, and reduces the size of the Supreme Court by one (taking away a Jefferson appointment)
c)	Marshall is made Chief Justice
d)	Federalists also pass the Justice of the Peace Act, which creates 42 J.P’s in D.C.
e)	Several of the commissions did not get delivered before Jefferson took office (they were sealed but not delivered).  Marbury is one of the appointees; he sues for delivery of his commission (e.g., he sues for mandamus)
f)	Side note: Anti-federalists delayed hearing on this for 14 months via the Repealer Act.
2.	The Opinion (note Marshall works in reverse order, addressing the court’s jurisdiction last (normally a court’s first concern) – Marshall, a Federalist, wants to slam on the anti-federalists for screwing Marbury)
a)	Does Marbury have a right to the commission?
(1)	Marshall is “decidedly” of the opinion that he does have such a right.
(a)	“The law had run out” – strictly speaking, there was no law regarding when the state should protect an individual’s right to a job; if common law rules applied, the transfer isn’t complete until delivered.
(i)	If its not based in law, it’s just his subjective opinion.
(b)	Graglia: what the hell is a right, anyway?
(i)	“Natural Rights” = making “oughts” into “ifs”  (Natural rights means you prescribe rather than describe)
(ii)	No rights exist outside of law – law is a description (describes how a court will rule)
(c)	Note Marshall could’ve gotten out of this easily by just saying the commission wasn’t complete until delivered (he doesn’t, since this would be to say Jefferson had the right to revoke).
b)	If so, do the laws give Marbury a remedy?
(1)	Marshall says yes (he makes a distinction between political – which confer no remedy –  and legal questions, but says this question is legal in nature)
(2)	Note the circular nature of the argument – a right is created by the remedy (that is, if there is no remedy then there is no right)
(a)	In other words, if the court cannot give Marbury relief, does he really have a right?
(3)	Also note that the proper remedy would be back pay, not injunction instating Marbury into office.
c)	If so, does the court have jurisdiction to issue such a remedy?
(1)	Marshall says that while the Judiciary Act grants the court original jurisdiction to issue a writ of mandamus, the Constitution does not.
(a)	Compare the two provisions
(i)	Constitution: original jurisdiction as to X, appellate as to all else
(ii)	Judiciary Act: original jurisdiction as to Y (including mandamus)
(2)	Criticism:
(a)	Constitution lists a minimum.  The constitution does not say original as to only X, just that it has jurisdiction over X (no negative words implying X is the only thing it can have jurisdiction over)  (VanAlstyne)
(i)	Does that mean that Congress can’t add to the Court’s original jurisdiction?  Or only that it can’t reduce it (i.e., it can’t take away X)?  Pure logic says the latter.
(b)	Bad Logic
(i)	Marshall: affirmative words can imply negative things
(ii)	Graglia: This is bad logic
(a)	Ex: If a lease says “you may have a cat,” pure logic does not bar you from also having a dog, 
(i)	However, you can make a case to the contrary –  common parlance would prevent a dog.
(c)	Constitution’s Authors are now in Congress – why would they pass a law which is not constitutional (how can their interpretation of Article III be wrong?)
(d)	Surplusage Ain’t So Bad – even if all this means the clause in Article III is surplusage, that’s not so bad – surplusage can be useful (helps drive home a point)
(e)	Note that Marshall actually weakens the court by saying that Congress can’t add to their power, but can subtract from it under the “such exceptions…as Congress shall make” clause.
d)	Establishment of Judicial Review
(1)	Constitution vs. Laws
(a)	The constitution is the people’s original will
(b)	A law that contradicts the constitution is invalid because otherwise, what’s the point of a binding written Constitution?
(i)	Graglia: couldn’t the point be to act as a caution to the legislature?  As it stands, Congress can just enact what it wants and let the judiciary sort it out; might the absence of judicial review produce a more cautious Congress? (VanAlstyne)  (ed. note: I don’t think so!)
(ii)	Is this necessarily so?  In the U.K. (and in most other democracies) there is no judicial review and the latest act of the legislature is considered valid law regardless of how it comports with any previous document.
(iii)	Why is the Constitution superior?  (Marshall just says it is since those who write them contemplate them being the “fundamental and paramount law of the nation;” for better arguments, see below)
(c)	The Supremacy Clause means the Constitution is superior (strongest textual argument).
(i)	The Supremacy Clause (while showing the constitution is real law and not just moral exhortation) could only mean that federal law is superior to state law.
(ii)	“In pursuance of”
(a)	Could mean that court can only review procedural constitutionality of a law (were the appropriate processes done in enacting the law?)
(b)	Could mean that the legislature should only make laws in pursuance of the constitution which will be supreme. (ed. note – not likely)
(2)	Judicial Review (or why the courts decide)
(a)	Begging the Question – Marshall asks “is an unconstitutional law valid?”
(i)	Graglia: that presupposes the answer to the question “who determines constitutionality?”  (it begs the question)
(a)	But if the judiciary doesn’t, what of separation of powers? 
(b)	It is the province of the judiciary to say what the law is (to choose between conflicting laws)
(i)	Graglia: that’s fine, but that doesn’t mean you have to pass on constitutional grounds – you can just pick which law is more proper.
(c)	Judicial power extends to all “cases and controversies arising under the Constitution”
(i)	Does this necessarily mean reviewing acts of Congress?  Couldn’t it mean hearing cases on which Congress has been silent?  (VanAlstyne) 
(ii)	In other words, might it just confer the power in cases where Congress is silent for the court to recognize rights and remedies allowed under the Constitution
(d)	Judges take oath to uphold the constitution
(i)	Graglia: Everyone takes that oath, including the Congress and the President – it’s just a test of your political principles, nothing more.
e)	Further Considerations of Marbury v. Madison and Judicial Review
(1)	There was no outcry after Marbury, so review must be OK
(a)	Graglia: both sides didn’t make a fuss because they wanted it for their own purposes (Jefferson wanted the Alien & Sedition Acts overturned)
(2)	Article III (“supreme judicial power”) – this means judicial review was intended in the Constitution
(a)	Graglia: an OK textual argument, but is it judicial to pass on the power of a body to pass law?
(3)	State courts had judicial review, so it must be OK
(a)	Graglia: so what?  What did the ratifiers think?  Judicial review may have been OK to an extent, but what nature and scope of review is permissible?  (lack of defining scope leads to activism)
(4)	Of course, Hamilton wrote about it in Federalist #78 (see above)
(5)	Marshall should have recused himself from hearing the case – he was Adam’s Secretary of State
(6)	Eakin v. Raub (1825) – takes different opinion on review; says judiciary should only look into form of enactment; acts shouldn’t be presumed invalid (deference to legislature); oath only a test of political principles; legislature should clean up their own constitutional messes; Constitution isn’t magical, it’s a moral compass.
C.	Criticism of Judicial Review in a Democracy (McClesky article on why review isn’t democratic) [pro-review comment followed by McClesky’s response]
1.	The people eventually get their way (amendment)
a)	Democracy means control right now
(1)	But might the delay be of benefit (“sober decisions”)?
(a)	Maybe, but how ‘drunk’ should the people be before the court steps in?
(b)	Also, the idea that people need to be protected from themselves is a classic anti-democratic argument
2.	Judges take longer view of things, while Congress just appeases the here-and-now
a)	What of great leaders?  Doesn’t review hamstring them?
b)	Also, why are judges so much better equipped to take a long-term view?  Most come from political (not judicial) backgrounds.
3.	Other policymakers are appointed (the military, the Fed, the ICC)
a)	Military is directly controlled by popular representatives; the Fed and ICC have also been criticized for their lack of popular control
b)	Even the Fed and ICC are indirectly controlled, since Congress sets their scope, power, and budget
4.	Review has been accepted historically
a)	That doesn’t mean it’s undemocratic, only that we adhere to constitutional principles (even undemocratic ones)
5.	Control exists by…
a)	Amendment
(1)	Too difficult, too time-consuming
(a)	But is it?  11th amendment overturned decision saying you can sue a state, 13th overturned Dred Scott, 16th overturned decision saying income tax wasn’t constitutional, and 26th overturned decision saying Congress couldn’t set voting age for state elections
(2)	Court could interpret amendment away
(a)	Graglia: not likely, since the amendment would be staring them in the face
b)	Impeachment
(1)	Impractical (too hard to get Congress to impeach)
c)	Manipulation of personnel by Congress
(1)	Tough to guess how justices will vote – e.g., Nixon’s appointees turned out to be raving liberals; also, see McCardle below
d)	Congressional control of jurisdiction and lower courts
(1)	Impractical, messes up judicial process
e)	Graglia also notes that the court is not proactive (no advisory opinions); they cannot make law without a case of some kind; however, this isn’t really a limit since Graglia’s ACLU buddies always have a case waiting.
D.	Further Development of Judicial Review
1.	Ex Parte McCardle (1868) – Congress takes power to hear a certain type of appeal away; before act passed, McCardle had appealed; Court nevertheless does not hear his appeal, claiming no jurisdiction
a)	Represents Congress effectively controlling the court
b)	Why doesn’t Congress do this more?
(1)	Court would still get to decide the constitutionality of the act reducing their jurisdiction
(2)	Might be “locking the barn door after the horses are out,” since lower courts (either federal district or state) will hear the case and will presumably decide by Supreme Court precedent
(3)	Con Law professors would bitch to Congress
2.	Michingan v. Long (1983) – State court decision on search was unclear if it relied on state or federal constitution; the court hears the case
a)	Doctrine of adequate and independent state grounds – The Supreme Court can only hear a state case to the extent it involves correcting application of federal law; if the case was decided on adequate & independent state grounds, court will deny review since it wouldn’t affect the outcome (and would thus be an impermissible advisory opinion)
b)	Graglia: Michigan court was just trying to make the decision stronger while also putting it out of reach – the decision means that a state has to tread very lightly when using federal law as part of its decisions.
c)	Michigan means that:
(1)	If the state court uses federal law persuasively (that is, it’s not relying on it, but is relying on state law) it should state in clear terms that it has adequate & independent state grounds for its decision (the grounds must be substantive and not just a throwaway phrase)
(2)	Without such clear terms, the Court will have jurisdiction (terms must be enough to support the decision on their own)
(3)	Michigan is a change because of the clear terms requirement – the Michigan court essentially put in a line saying “hey, by the way this doesn’t fit with the state constitution, either” in order put it out of the Court’s reach.
III.	Superiority of National Government (Federalism)
A.	Background on McCulloch 
1.	Both Hamilton and Madison were in favor of a strong national government; they felt the bank would enhance national power.
2.	Jefferson and Hamilton square off over the bank…
a)	Jefferson (anti-bank) – when we passed the Constitution, we specifically didn’t give the federal government the power to charter a corporation because we didn’t want a bank.
(1)	Also, “general welfare” is only part of taxing/spending power – a bank doesn’t sound like spending money for general welfare.
b)	Hamilton (pro-bank) – legislative history is hearsay; the law is what was actually passed.
3.	Side note – McCulloch was a bank teller; he’s suing because he has standing
4.	Graglia: this case signals the end of federalism
B.	McCulloch v. Maryland (1819)
1.	Can the federal government charter a national bank?
a)	Maryland’s argument (anti-bank)
(1)	Syllogism:
(a)	Congressional power is limited (enumerated)
(i)	10th amendment limits power (“power not delegated to US…[is] reserved to the states”) by negative implication
(a)	Marshall: 10th was just to quiet “excessive jealousies” – it doesn’t actually do anything (thought Marshall agrees that powers are limited)
(b)	The power to charter a bank is not an enumerated power
(i)	Marshall: power is implied – government must have the means to execute its enumerated powers (see below)
(c)	Therefore, the bank is unconstitutional 
(2)	Response to Necessary & Proper Argument
(a)	“Necessary” does not mean “convenient” – just because a bank may be convenient does not mean it’s necessary, e.g., essential
b)	McCulloch (Marshall) argument (pro-bank)
(1)	Textual Arguments
(a)	10th amendment – does not say “powers not expressly delegated” – therefore it implies the existence of implied powers (these were the terms in the Articles of Confederation, which further shows the framers didn’t want to shackle the feds)
(i)	Graglia: weak, because you can always qualify statements with more language to strengthen it.
(ii)	Hamilton edited out “expressly,” much to Henry’s horror.
(iii)	What’s the point of enumerating power if they have all power by implication?
(b)	Article 1, Sec. 10 uses “absolutely necessary” in state limitations – wouldn’t they use the same language if they wanted to completely bar certain federal actions, e.g., eliminate the notion of implied power?
(c)	Textual Placement – The necessary and proper clause (Congress can do whatever is necessary and proper to carry out its enumerated powers) is found within the section of the Constitution enumerating powers, not setting limits 
(d)	“Proper” is not needed to modify “necessary” if necessary is read in its narrowest sense (e.g., absolutely necessary)
(i)	Graglia: shouldn’t the addition of ‘proper’ then narrow the definition of necessary?
(ii)	Also, can’t something be necessary but improper?
(e)	Don’t need prohibitions if power is drawn so narrowly that there can’t be any deviation; therefore, powers must be construed broadly because of the existence of prohibitions
(i)	Graglia: dangerous, because if the prohibition isn’t complete, then everything else is an implied power
(2)	Structural Argument
(a)	The Constitution is a broad outline not intended to be read as a detailed list of every government power
(i)	Graglia: there are some pretty specific things in Art. 8, and there is often overlap between the broad and specific – e.g., Congress can declare war and raise armies and grant letters of Marque.  If the Constitution is so broad, wouldn’t those specifics be included in the broad grant?
(3)	Policy Argument
(a)	Shouldn’t choose a construction that is inconvenient; should choose one that facilitates government operation.
(i)	Graglia: Why?  Isn’t the whole point of federalism to restrict the federal government?
(4)	Means-End Test  
(a)	The federal government can do whatever it wants to achieve a constitutionally-sanctioned end.  (if the end is constitutional, then any means used to reach it is OK)
(i)	Graglia: problem with that is how to determine if the end claimed is a pretext?  How related to the “end” must the implied power be?
2.	Can Maryland tax the bank?
a)	No express provision prohibits the tax (Marshall points to a “principle” supposedly interwoven throughout the Constitution)
b)	Marshall’s rationale
(1)	Power to create = power to preserve
(a)	Graglia: then why doesn’t Congress just pass a law prohibiting the states from taxing the bank?  (Why should it be a Constitutional issue?)
(2)	Power to tax = power to destroy
(a)	Graglia: this is weak – any power can be abused; you shouldn’t say a power doesn’t exist because it might be abused
(b)	Marshall might have a better stab at this if he said the tax was a tax by Maryland citizens against non-Maryland citizens (e.g., the other 12 states)
(3)	Therefore, the power to tax is repugnant to the power to create, and Maryland can’t tax the bank.
(a)	Graglia: The states can and do tax federal entities today!  (Marshall is just wrong)
C.	Additional Considerations
1.	This case illustrates the power of language and how it can be manipulated (and the potential to make the law impotent)
a)	Ex.  What is a cat?; Gore calls a pig a dog so it can be used to sniff at airports
2.	This case previews the rational basis test used today – the test that cannot be failed
IV.	The Commerce Power
A.	Historical Context
1.	Generally, a big reason for the constitution’s creation was to remove barriers to commerce between the states.
B.	The Dormant Commerce Clause
1.	Gibbons v. Ogden (1824)
a)	Facts 
(1)	Ogden had grant to operate steamboats between NY and NJ from the NY legislature
(2)	Gibbons operates along same route; Gibbons has a license from the federal government
(3)	Ogden sues to stop Gibbons; wins in NY court; Gibbons appeals
b)	Defining Commerce (Is navigation commerce?)
(1)	Narrowest definition would limit it to buying and selling
(2)	Marshall: the better definition is “commercial intercourse” (which would include navigation
(a)	Graglia: that’s cheating – ‘commercial’ is no more concrete a term than ‘commerce’
c)	Defining “Among the Several States”
(1)	Marshall: “intermingled with – not completely internal – concerning more than one state; it must:
(a)	be completely internal
(b)	not affect the other states
(c)	not be necessary for Congress to interfere for purposes of exercising one of the general powers of government
d)	The Dormant Commerce Clause 
(1)	Basically the idea is that the federal government has the exclusive power to regulate; the only limit on interstate commerce legislation is the ballot box (it is a political question)
(2)	Put differently, the states cannot regulate even if the feds also  haven’t regulated – the decision not to regulate is a regulation in itself (the federal government has decided it wants this area unregulated)
(a)	Graglia: isn’t it more likely that Congress simply hasn’t approached the issue yet?  Marshall assumes Congress has considered every possible regulation and decided which to keep and which to discard.
(b)	The idea main idea behind the commerce clause was to prevent discrimination against out-of-state goods
(c)	Marshall says the “license” given to Gibbons is a regulation, but this isn’t really so (it just certified the boat was operable); 
(i)	Also note that the court ducks the constitutional issue by saying it relies on the statute 
(3)	Johnson’s concurrence takes the confusing position that the prohibition exists, but the states can regulate for health & welfare under the police power.
2.	Willson v. Black Bird Creek Marsh Co. (1829)
a)	State (DE) put up a dam in a navigable river; does this intrude on the federal interstate commerce power?
b)	Marshall says no!  Marshall here backs off from the dormant commerce clause idea, saying that DE may construct the dam because Congress is silent
3.	The License Cases (1847)  (Taney Court)
a)	This is actually a group of cases involving state liquor licensing
b)	Taney essentially says there is no dormant commerce power; the states are free to regulate where Congress has not spoken (no implied prohibitions)
(1)	Court cites to Brown v. Maryland, which lays out the “original package” doctrine – goods are interstate as long as they’re in the original package (precursor of definitional approach)
4.	Cooley v. Port of Philedelphia (1851)
a)	Court examines PA pilotage law
b)	Court takes middle position between Gibbons and License Cases
c)	Court says that the states are prohibited from regulating in some cases but can regulate in others (the Constitution is a partial restriction on the states’ commerce regulations)
5.	Dormant Commerce Clause and Scalia – Scalia thinks like Taney – that the idea of a dormant clause should be abolished except where the states are actually discriminating against interstate commerce.
C.	Commerce Power as a Positive Grant 
1.	Historical Context
a)	The Interstate Commerce Act of 1887 was passed to control railroads; the Sherman Anti-Trust Act passed in 1890
b)	The big question here is when is something commerce, and when is it interstate?
2.	Kidd v. Pearson (1888)
a)	Iowa law prohibiting manufacture of liquor is in question
b)	Court makes distinction between commerce and manufacture (liquor manufacture  commerce)
3.	The Daniel Ball (1870)
a)	Michigan steamer only operates within Michigan but carries goods that are eventually sold interstate
b)	Court defines interstate commerce as a chain – any links in the chain are interstate, even if by themselves they are only intrastate (if the chain crosses state lines, all links are interstate)
(1)	Graglia: There’s no stopping point with this; virtually all activities are at some point in the chain of commerce
(2)	The court here really doesn’t apply a rule; rather, they just analyzed the situation (very un-law like)
(3)	The real problem is the division of legislative authority between federal and state – shouldn’t that be a political, rather than legal, issue?
4.	United States v. E.C. Knight (1895)
a)	Sugar refinery has 95% of the market – court must decide if the Sherman Anti-Trust Act applies to it.
b)	Court, citing Kidd, says that manufacture (here, refining sugar) isn’t interstate commerce – says the test is direct-indirect (only things directly affecting interstate commerce can be regulated); refining only has an indirect effect.
(1)	Graglia: the direct-indirect definition is a cop-out – it is just as subjective as anything else
(a)	This begins a switch from definitional to a functional approach (regulation only if a direct impact on commerce)
(2)	The only affect here is price – but what affects commerce more than price?
D.	The Bar Theory (faking the police power)
1.	The Lottery Case (Champion v. Ames) (1903)
a)	Federal Lottery Act makes it illegal to ship lottery tickets over state lines.  Question: can Congress exclude certain articles from interstate commerce?
b)	Court says yes; the power to regulate implicitly means the power to prohibit.  
c)	Court also says it won’t look into the motive for the law, only into if Congress can regulate it as commerce
(1)	Are tickets commerce?  Probably – people pay money for them
(2)	Graglia: this wipes out the McCulloch requirement for a legitimate end – all you need is to use an enumerated power to do it.  (Congress can do anything as long as it’s not honest about it)
d)	This case fundamentally changed the nature of our system of government; it permitted the federal government to regulate for anything (even morality)
(1)	The Bar Theory (in a nutshell) – Congress can regulate the “channels” of commerce, and so can prohibit the use of those channels for any activity it sees fit
(2)	Note the bar theory requires a definitional approach (the goods must be defined as commerce)
2.	Miscellaneous Cases (all use Lottery rationale)
a)	Hipolite Egg – upheld Pure Food & Drug Act 
b)	Hoke – upheld Mann Act (ostensibly for white slavery, prohibited moving women across state lines – really for prostitution) 
3.	Hammer v. Dagenhart (1918) (unconstitutional)
a)	Act challenged prohibited the transportation across state lines of goods from any place that used child labor
b)	The court finds this act unconstitutional because child-made goods are essentially harmless (as opposed to lottery tickets and prostitution)  (note decision overturned in Darby)
(1)	Graglia: Lottery tickets and young women are no more harmful; actually, Hammer presents a stronger case – it involves commerce far more than Lottery or Hoke (which were purely moral concerns)
(2)	Lottery says anything shipped over state lines is interstate commerce, and a prohibition of such a shipment is regulation; if that’s so, it shouldn’t matter what the nature of the goods is
c)	Holmes’ Dissent
(1)	He says that if Congress is acting within the scope of its power, any collateral effect doesn’t make the act unconsitutional
(a)	Graglia: this is a more realistic position – it’s honest: the commerce power is all power
d)	Note that the state cannot say it won’t accept child-made goods (in the absence of federal regulation) because it would be a discrimination against interstate commerce (e.g., the dormant commerce clause) 
4.	United States v. Darby (1941)
a)	This case is the culmination of the bar theory 
b)	Act prohibited production of goods that did not meet the Fair Labor Standards Act
(1)	First the act prohibits shipment of goods not made in accordance the labor standard
(2)	Then it prohibits production of such goods, ostensibly as a means of enforcement of the first part
(3)	This leads to the Darby Bootstrap – first you prohibit all interstate commerce activity associated with the local activity, then prohibit the activity itself as a means of enforcing the commerce prohibition
c)	This case also (re)adopts the notion that motive behind an act’s passage is irrelevant as long as Congress is acting within the scope of it’s stated power
d)	Court explicitly overrules Hammer; also says 10th amendment is a ‘truism’ but does not actually limit federal power
5.	The Drug Cases (McDermott & Sullivan)
a)	The Federal Food, Drug, and Cosmetic Act required specific labels on bottles of certain pills
b)	McDermott v. Wisconsin (1913)
(1)	Wisconsin druggist destroys the label to put another label on in order to comply with state law
(2)	Court overturns his conviction under the state law, saying the federal law is superior and the federal law is valid as applied since it served the purpose of making inspections easier (it’s easier to inspect on the shelf than when in transit)
c)	United States v. Sullivan (1948)
(1)	Druggist removes pills from wholesale container (with federal label) and puts them in a small box for customers (and did not label the small box)
(2)	Court applies same bar theory as in McDermott, saying it is essentially the same case even though Sullivan is a secondary reciever where McDermott was a primary reciever
(a)	Graglia: if those pills are in the stream of commerce until the final sale, aren’t they now out of the stream (sale to consumer is final sale)?
(i)	But, ‘ease of inspection’ (as in McDermott) requires letting the feds inspect at any point
(a)	Isn’t this not like McDermott?  The court relies on the ‘ease of inspection’ argument, but that doesn’t really apply – The original container is still there (Sullivan didn’t destroy the label, he just moved the pills to a new box)
(b)	The affects theory would be a more forceful argument than the bar theory the court uses.
(i)	Perhaps not labeling gives the druggist a competitive advantage, thus affecting commerce
(ii)	Labels are designed to prevent people from taking them improperly – if someone takes them improperly because there isn’t a label, gets sick, and can’t work, it affects interstate commerce
(iii)	FDA doesn’t make this argument because it would give the game away – this argument too clearly shows the act as a health (and not commerce) measure
E.	The Anti-New Deal Court Era (the court gets tough)
1.	Schechter Poultry Corp. v. United States (1935)
a)	National Industrial Recovery Act (NIRA) of 1933 required certain wages for poultry workers; a NY poultry slaughterhouse charged with violation
b)	The court said the flow of commerce had come to an end in the poultry slaughterhouse even though almost all the poultry came from out of state; therefore, the workers are no longer in the stream either – there is no direct affect on commerce
(1)	Distinguished from Swift (see infra) – Swift meat eventually went on to other destinations, while meat here stayed in NY
(2)	Graglia: Wages do affect commerce – they are 50-60% of total costs; lower wages = lower prices = more poultry sold 
(a)	Cardozo (in concurrence): to say this “proves too much” – to find directness here would be to find it everywhere 
2.	Carter v. Carter Coal Co. (1936)
a)	Act regulates wages (among other things) for coal miners
b)	Court reverts to an E.C. Knight-style definitional approach – says this is manufacture and not commerce, so Congress cannot regulate
c)	Court also says the goods are at the beginning of the “stream of commerce” – they haven’t actually entered the stream yet
d)	Cardozo’s concurrence/dissent – he says better definition than direct/indirect would be intimate/remote
(1)	Graglia: that’s not a real distinction – either way, the court relies on subjective taste when applying a label (definitional is less a test and more of a conclusion)
3.	also see United States v. Butler in taxing power, infra
4.	The Court Packing Plan, Robert’s switch, and the rise of commerce power
a)	The above decisions were serious blows to FDR’s New Deal
b)	FDR sought to implement a court-packing plan, which would increase the number of judges both on the court and nationwide, and to persuade judges to retire via pension plans
c)	Fortunately (at least for the New Deal) Justice Roberts switched sides between Carter and Jones & Laughlin; also VanDevanter retired, thus saving the New Deal 
F.	The Affects Test
1.	The Shreveport Rate Case (1914)
a)	Texas set its intrastate train rates lower than the ICC interstate rates; thus, mile-for-mile, rates were cheaper from Marshall to Dallas than Marshall to Shreveport
b)	Court says when intrastate commerce has “close and substantial relation” to interstate commerce, feds may regulate – intrastate rates must be regulated to prevent de facto barriers to interstate trade
(1)	Graglia: where do you draw the line?  What can’t Congress do?
(2)	The court here throws in the towel from E.C. Knight.  Since the ICC must control intrastate commerce to regulate interstate commerce, any distinction between the two is effectively abolished
c)	Why not just lower the federal rate and avoid the constitutional quandary? 
(1)	Because that would be to effectively give the states control of interstate commerce – that is, to give up a power expressly given to the federal government
d)	Thus, this case establishes the affects test 
2.	Swift & Co. v. United States (1905)
a)	Antitrust laws applied to meat dealers; constitutionality challenged
b)	Court uses “stream of commerce” theory – says that although the cows/meat were bought and sold in one place (the stockyards), they are part of the stream that begins at manufacture and ends with final purchaser.  (stockyards only a temporary “way station”)
(1)	Graglia: this really ought to be intrastate commerce (as in E.C. Knight)
(2)	Also, there is no difference between stream and affects theory – they are both based on the effect a regulation will have on commerce as a whole (something is interstate if it has an impact on other states – sometimes called the Hidden Commerce Theory)
(3)	Graglia doesn’t like this case because it effectively kills E.C. Knight’s local autonomy protection
3.	Stafford v. Wallace (1922)
a)	Regulation of stockyard is constitutional because the stockyard is a “throat” through which beef flowed (e.g., stream of commerce)
(1)	Note again that stream and affects are essentially the same thing
b)	If something is interstate (e.g., in the stream) then Congress can regulate totally; if it affects, Congress can only address the effect.  
(1)	Graglia: that’s a false distinction
4.	NLRB v. Jones & Laughlin (1937)
a)	Case tested NLRA’s constitutionality; NLRB brings suit against stell company for interfering with union formation.
b)	The board can regulate any labor act which affects commerce
(1)	Thus, if there is a “substantial economic effect” regulation is OK; here, a potential labor stoppage would impact commerce.
(a)	Graglia:  Would it? In the 30’s steel was overproduced; also, it is the height of the Depression – are workers really going to risk their jobs by striking?
c)	The major significance of this case is the theories which it invalidates:
(1)	Current of commerce invalidated: it isn’t independent of the affects theory (though still used for bar theory)
(2)	Manufacturing vs. Commerce doesn’t matter, either – since things at the manufacturing stage effects later commerce
d)	Dissent – This case destroys any distinction previously held
(1)	Side note – dissent uses two other parties to the suit – small textile mills – rather than the giant steel company the majority focuses on (both sides decide on the facts most favorable to them)
5.	Wickard v. Filburn (1942)
a)	AAA of 1938 says farmer can only grow x amount of wheat; Filburn grows that amount to sell plus an amount for personal consumption; Filburn is charged with violation of the act (Act is designed to keep food prices up so farmers will survive – see also Butler, infra in taxing section)
b)	This case basically means the court has thrown in the towel regarding affects theory – that is, affects can justify anything
(1)	Graglia: for God’s sake, if they can keep little Farmer Filburn from growing wheat for himself and his family, what can’t they do?
c)	The basic idea is that consumption has a market effect – if Filburn didn’t grow his wheat, he’d either eat some of what he would sell, or buy his wheat for consumption; either way, the price is increased
(1)	Graglia: court makes ‘realpolitik’ statement that with every regulation, someone benefits and someone gets screwed
d)	Court employs aggregate affects test – Farmer Filburn may have a negligible impact on the price of wheat by himself, but if everyone did it the impact would be tremendous
(1)	Graglia: actually, the logic here is sound – there is a commerce effect, it’s just shocking to think they can regulate this little farmer
e)	Court also passes the buck to the legislature – the court just applies the law and the law here is OK – the unfairness of the act is a policy choice
6.	Civil Rights Act of 1964
a)	The Act 
(1)	Historical Context
(a)	In 1866, Civil Rights legislation was passed and found unconstitutional (which led to the 14th amendment’s passage)
(b)	Four other acts were then passed and also held unconstitutional on the grounds that the 14th amendment only applied to the states and not to private individuals
(c)	In 1877, compromise between Democrats and Radical Republicans was reached, and no civil rights legislation was passed for 80 years
(d)	1964 Act: Title IV – school desegregation via withholding funds; Title VI – no discrimination if you receive federal funds (intended for Rice, SMU, etc.); Title VIII – employment discrimination via commerce clause (only title to mention sex)
(2)	Title II – Three questions you must ask:
(a)	What kind of discrimination?
(i)	Must be based on race, religion, or national origin
(a)	Graglia: why so many?  Is religion or origin really a problem?
(b)	Why so few?  Why not sex, or fatness, or sexual orientation?
(b)	In what places?
(i)	Eating places (but not groceries – consumption must be on-premises)
(ii)	Hotels and inns  
(a)	“Mrs. Murphy” exception – less than 5 guests and owner lives on-premises
(b)	Private clubs are also exempt
(iii)	Gas stations
(iv)	Places of entertainment  
(v)	Anywhere that:
(a)	Is located within a covered establishment, or
(b)	Has a covered establishment located inside it
(c)	In what circumstances?
(i)	The establishment affects commerce
(a)	hotels – just being a restaurant is enough (customers are presumed transient)
(b)	restaurants – serves interstate customers
(c)	entertainment – customarily presents entertainment that has moved in interstate commerce
(ii)	Also, if establishment is supported by state action as a place of public accommodation or is a private establishment that makes its facilities open to patrons of a covered establishment
(3)	Source of Authority for the Act 
(a)	Attorney General Kennedy – didn’t give a damn about federalism (“There’s a problem, so we must find the tools in the Constitution to solve it”)
(b)	Asst. Attorney General Marshall – Discrimination burdens interstate travelers, affecting commerce (e.g., blacks can’t get hotel rooms)
(c)	Gunther – affects not valid; goods have reached their final destination, so no effect on commerce
(d)	Wechsler – Effect is on free movement of goods/individuals, which affects demand
b)	Heart of Atlanta Motel v. United States (1964)
(1)	Hotel owner seeks declaration that Act is unconstitutional
(2)	Court says that commerce is affected because absent the act blacks are discouraged from traveling (e.g., impeding travelers)
(3)	The court struggles with the commerce argument being a mere pretext for moral end (McCulloch).  However, court says the act does actually remedy an effect on commerce, so it’s OK
c)	Katzenbach v. McClung (1964)
(1)	Ollie’s Barbecue in Birmingham refuses to serve blacks
(2)	The court says the act is applicable because the discrimination affects interstate commerce because there is less food sold
(a)	Note it is not because they buy their food via interstate commerce
(3)	The court returns to the Wickard aggregate effects test – if every restaurant discriminates, commerce is adversely affected because blacks can’t spend money eating out
(4)	The court also adopts the rational basis test – that is, it doesn’t matter if discrimination (or whatever is being regulated) actually affects commerce, only that Congress has a rational basis for believing it does
(a)	Graglia: this is a test you cannot fail 
(b)	Graglia’s Armenian Hypo:
(i)	Armenian restaurant owner refuses to serve a Turk
(ii)	Is there a violation of Title II?
(a)	On the surface, yes; however, Congress would have no rational basis to believe that this affects commerce because the Turk can simply go next door to the next restaurant
(b)	Essentially, there is nothing today which accurately parallels the widespread discrimination against blacks in the 60’s in the sense that it would impact commerce
(c)	Title II removed the “prisoner’s dilemma” – pre-title, if a restaurant served blacks, it would lose more white buisiness than it gained in black business to restaurants that still discriminated; since under the act everyone can’t discriminate, the dilemma is gone
7.	Maryland v. Wirtz (1968)
a)	Fair Labor Standards Act amended to include hospitals and schools
b)	Court says this is OK because Congress has a rational basis
(1)	Congress’ basis: schools and hospitals buy supplies from interstate commerce
(2)	Court’s basis: poor working conditions cause labor unrest
8.	Perez v. United States (1971)
a)	Federal statute makes it a crime to be a loan shark (1st time this is done without using the bar theory – statute relies entirely on affects theory)
b)	Rationale is that business is hurt by organized crime (by essentially stealing money, coercing victims to commit crime to make payments, and causing legitimate businesses to be taken over by racketeers)
(1)	Dissent: But all business is hurt by crime – this rationale would mean that the federal government can regulate all crime
(2)	Graglia: note you could argue that you are an “independent” loan shark so you’d fall outside the relevant class (organized crime)
(a)	But government could argue that administrative ease should give it the right to ignore the distinction
9.	Hodel v. Virginia Surface Mining and Reclamation Association (1981)
a)	Action brought challenging act regulating land use for mining
b)	Here, Congress didn’t even make detailed statement on how the act affects commerce; rather, it just says it does
(1)	Court takes this and assumes a “rational basis” – it assumes damage to water resources and residential/recreational property can be considered an effect on commerce
G.	An Analysis of United States v. Lopez 
1.	Facts
a)	Congress passes Gun-Free School Zones Act, prohibiting possessing a gun within 1,000 feet of a school
b)	San Antonio student takes gun to school, is charged with violation of the Act.
2.	Rehnquist’s Majority Opinion
a)	Three things Congress can do under the commerce power:
(1)	Regulate the use of channels of interstate commerce (bar theory)
(2)	Protect the instruments of or persons/things in interstate commerce (affects theory)
(3)	Regulate activities which substantially affect interstate commerce (also affects theory)  (this case can only fit in this category)
b)	Is it “affect” or “substantially affect”?  Rehnquist says it must be substantially affect.
(1)	Graglia: the court noticeably avoids the use of the “rational basis” test (only used once, and then to imply that past decisions supported a substantial effect requirement)
(2)	The court is reverting to a definitional, E.C. Knight-type approach, the distinction here being substantial vs. insubstantial (that is, some things just aren’t commerce)
c)	Government says there is an affect – violent crime increases insurance costs and reduces willingness to travel; unsafe schools hurt the educational process, which in turn leads to a less productive citizenry
(1)	Court says that (as in Schechter) proves too much – if the government can regulate anything affecting national productivity, it can regulate the educational process itself, or even family law (marriage, divorce, child custody, etc.)
(a)	Graglia: the court is right, but it’s too late – the court doesn’t overturn or even criticize any previous decision, and those decisions long ago gave Congress the de facto police power
d)	Court says the regulated thing is not commercial (Graglia: contradictory to Wickard!), and Congress did not explicitly invoke either the bar or affects doctrine (though Congress does not have to make such findings, they would help the court in determining “substantiality”)
(1)	Graglia: this is only an accommodation to a legal fiction – there is no reason to believe Congress made a “legislative judgment” regarding the effect of guns in schools on commerce
(2)	Thus, the court really is saying Congress can’t flout the legal fiction that its laws must be a regulation of commerce – it must play the game of saying the law is a commerce regulation
(3)	Therefore, if Congress had added the phrase “in interstate commerce” would make the statute supportable under the affects doctrine
e)	Court does not mention the bar doctrine – it even seems to go out of its way to avoid it (“there is no indication that [the defendant] had recently moved in interstate commerce, and there is no requirement that his possession of the firearm have any concrete tie to interstate commerce.”)
(1)	If they had, just showing the gun (or the student) moved over state lines would be enough if Congress wrote the law as a bar theory piece of legislation (e.g., said it is illegal to have a gun which has crossed state lines within 1,000 feet of a school)
(2)	Graglia: the logic of the bar doctrine is too clear to question – if something has moved over state lines it just is interstate commerce
(3)	Bar doctrine is so firmly entrenched that that it’s revocation is inconceivable
f)	Graglia: Problem with saying it must be a use of either the police power or commerce power ignores the reality that an act can be both.  Inquiring into which thing was intended is useless, because Congress intends all the foreseeable effects of its legislation
3.	Kennedy’s Concurrence (with O’Conner)
a)	Kennedy expresses concern over definition-based, E.C. Knight-type approaches because of there imprecision
b)	Kennedy is also concerned that if the government is permitted to control areas having nothing to do with commercial activity, distinction between federal and state authority would be meaningless
c)	Therefore, Kennedy says, it is proper for the court to inquire if the statute in question intrudes on an area of “traditional state concern” to keep the balance of federalism
(1)	Graglia: of course, the distinction is already meaningless – the horse has long ago left the stable
(2)	This is primarily an apologia for the court protecting federalism, even though it is first and foremost Congress’ job and involves a fair amount of political judgment
(3)	What Kennedy seems to want is a requirement in the statute that someone or something at some point to have crossed a state line – that Congress “find” that the regulated act affects commerce.
(4)	In other words, he says the court has a role in protecting federalism, but that the majority opinion shouldn’t raise hopes that it will
4.	Thomas’s Concurrence
a)	Thomas wants to reject the affects doctrine entirely and return to interpretation via original intent
b)	To that end, he says, commerce = trade, traffic, and the interchange of goods (and not the production of goods) [even though this view ignores economic reality]
(1)	Graglia: this is a complete return to the E.C. Knight definitional approach – that is, production isn’t commerce.
(2)	This is unlikely the framer’s intent – their concern for federalism was less than their concern for effective national control of commerce
c)	Thomas says Gibbons is fundamentally misunderstood – it really means power doesn’t extend to completely internal commerce (he says the court took great pains to make that clear, that navigation was just a notable exception)
(1)	Graglia: this is unlikely, given Marshall’s strong nationalistic view and his broad grant of power in McCulloch, and other statements in Gibbons 
d)	Thomas says affects doctrine – even if ‘substantial’ – gives Congress the police power, especially when combined with the aggregate effects theory – in combination, Congress could prohibit weapon possession generally
(1)	Graglia: But they have so prohibited through the bar theory, without resort to either affects theory or aggregation
(2)	Again, to question the affects doctrine is locking the barn door too late, at least if the bar theory isn’t thrown out as well
(3)	It’s kind of funny that such a near-revolutionary opinion regarding affects theory wouldn’t even mention the bar theory – which is older and more questionable basis for federal police power
5.	Stevens’ Dissent
a)	Stevens says guns are articles of commerce; gun possession is a consequence, directly, or indirectly, of commercial activity
b)	Congress therefore can prohibit guns in any place because of their potentially harmful use
(1)	Graglia: Stevens doesn’t show how this rationale could fail to make any statute invalid under the commerce clause.
6.	Souter’s Dissent
a)	On the one hand, Souter seems to say that anything could be found constitutional under ‘rational basis’ – but also says a commerce case can be “close” and give the court a “hard job” which seems to indicate something could be found unconstitutional
b)	Rational basis means the law is not subjected to “judicial policy judgments”
(1)	Graglia: that implies that other commerce theories do so subject the laws to such judgments
(2)	If judicial activism = evaluating policy choices that the constitution clearly does not prohibit, then Souter is one of it’s leading practitioners
(3)	It’s pretty clear no such policy judgment was made by Congress when it passed the law
c)	The gun law passes the rational basis test – “the commercial prospects of an illiterate State or nation are not rosy”
(1)	Graglia: that ignores the federalism issue – to say Congress can regulate education because of its commercial impact is to give the federal government all power
(2)	What then, is the point of enumerated powers or the 10th amendment?
7.	Breyer’s Dissent (the principal dissent, joined by Stevens, Souter, and Ginsburg)
a)	Breyer cites a whole bunch of statistical research that guns in schools undermine the educational process (which even the majority does not deny)
b)	Because of the effect, Congress can regulate guns in schools as the regulation clearly passes the affects test
(1)	Graglia: this ignores the majority’s point – if Congress can regulate guns in schools because it affects education, and thus competitiveness, it can also logically regulate education directly  
(a)	Breyer says the distinction is that guns are a “particularly acute threat” to education and are incompatible with education in a “special way”
(i)	Graglia: that’s not a real distinction
c)	Breyer’s three problems with majority’s opinion:
(1)	Inconsistent with precedent
(a)	Graglia: the majoirty does distinguish (even if the distinction is minute) that in this case Congress did not even make a pretense of using the commerce power
(b)	Surely it’s offensive to the court’s dignity to have to defer to a judgment on commerce that Congress doesn’t even bother to mention
(2)	Relies on irrelevant commercial-noncommercial distinction
(a)	Graglia: it’s true that that’s not a helpful distinction, but at least here the regulated activity seemed pretty noncommercial
(3)	Threatens to create legal uncertainty
(a)	The only legal certainty unsettled is the notion that Congress can do anything
(b)	There had been several cases leading up to Lopez where the court ‘rumbled’ about the crumbling of federalism
d)	Graglia: it’d be a lot better if the dissenters didn’t keep up this pretext that they might hold some future act unconstitutional and just admit that it is not feasible, helpful, or appropriate for the court to try to limit federal power
8.	Graglia on Lopez, Commerce, and Federalism
a)	Lopez only means that the omission of a few trivial words invalidated the act; the court indicates an apparent indication to undertake serious review of commerce clause legislation under the affects theory, but it is unlikely that it will be able to muster five votes if the ‘magic words’ are included
b)	The court ought to abandon judicial review under the commerce clause because:
(1)	Review for federalism is fundamentally different from review for individual rights
(a)	It is one thing to say a law violates a specific provision, quite another to say a law doesn’t fit within such a vague concept as commerce
(2)	Tightening the rational basis test would only result in more legislation utilizing the bar theory (and thus even less intellectual honesty by the court, as the court has shown no inclination to question the bar doctrine)
(3)	Principled limits cannot be drawn, since the power to regulate commerce necessarily mean the power to regulate things that affect it and all things affect it to some degree – no review would be the end of the “embarrassing charade” that is rational basis review
(a)	Honesty and openness in a government’s institutions are desirable as a means of maintaining the public’s trust
(b)	Better (more ethical) training of lawyers because they wouldn’t have to learn how sneaky constitutional federalism is
(4)	The court would cease to give legitimacy to congressional acts via the rubber stamp of the rational basis test (puts responsibility for expansion of federal power where it belongs – squarely on Congress)
(a)	As it stands, Congress doesn’t care – they just leave the ultimate decision to the court.  Congress has no incentive to meet their constitutional responsibility
(b)	The court then ‘defers’ to a nonexistent legislative judgment, and so federalism is considered at neither stage.
V.	The Taxing Power
A.	Generally 
1.	Any taxing measure will have some regulatory effect (e.g., taxing liquor tends to reduce the consumption of liquor)
2.	Therefore, it’s a mistake to look to what was intended by an act to determine if it is a regulation or a tax – Congress intends all its effects
a)	For example, a tax on either milk or liquor will raise revenue – Congress will more likely choose liquor because it’s better to reduce alcohol consumption than milk consumption – but Congress means to both raise revenue and discourage alcohol consumption
b)	It’s also a bad idea to look at Congressional intent because that just means next time Congress passes a law they’ll be less honest about their rationale during hearings and debates
c)	Graglia’s alternate tests for regulation/tax question (if only he sat on the court)
(1)	Detailed Regulations – if the law lays out detailed regulations and failure to comply invokes the tax, it is probably a regulation
(2)	No Revenue – if the act doesn’t raise revenue, it’s probably a regulation
(3)	Laffer Curve test – If the tax is higher than the price getting the maximum return, it is probably a regulation
B.	Taxing as a Prohibition
1.	Leo W. McCray v. United States (oleomargarine case) (1904)
a)	Statute imposes lower tax rates on colored than on uncolored oleomargarine (uncolored = ¼ ¢/lb., colored = 10¢/lb.)
b)	Court says this is not a regulation, but a tax [doesn’t look to intent, just says this is a tax on its face – this case is the taxing version of Lottery – the court will defer to Congress, saying this is a non-judicable question]
(1)	Graglia: but this is obviously a regulation – the tax would raise no revenue (butter is selling for 6¢/lb. at the time).  It is clearly a subsidy to the butter lobby.
2.	Bailey v. Drexel Furniture (child labor tax) (1922) (unconstitutional)
a)	Law imposes tax on businesses using child labor
b)	Court uses several rationales to say it’s unconstitutional that don’t matter (intent elemet – so what, other taxes held valid have them; inspections can be done by both Treasury and Labor Dept.; lack of proprotionality – same tax whether 1 kid or 10)
c)	The only one that matters: on the face of the act, this is a regulatory scheme (the “everybody knows” rule )
(1)	Graglia: How does this square with McCray?; see discussion above on looking at intent to determine tax/regulation
3.	Nigro v. United States (1928)
a)	Anti-Narcotic Act of 1914 imposes a tax on narcotic sales and requires a form be on file with the commissioner of revenue for sales to be legal
b)	Court says the Act is OK because:
(1)	It raised revenue ($10M – money talks, bullshit walks)
(2)	The forms requirement is to make collection easier (yeah, right)
(a)	Therefore, a regulation is likely valid as long as it is reasonably related to the collection of the tax
(3)	Precedent (same law upheld in Doremus)
4.	United States v. Kahringer (1953)
a)	Law imposes tax on illegal gambling; it also required registration and public listing of bookies in post offices
b)	Court, noting the measure had pulled in $4M, ceded it was a tax and thus the additional requirements are OK
C.	Spending as an Incentive
1.	Frothingham v. Mellon (1923)
a)	Ms. Frothingham sued as a taxpayer challenging an act which gives the states funds if they take steps to reduce infant mortality
b)	Court says Mrs. Frothingham has no standing to sue (being a taxpayer does not give you standing) because her interest is “too minute”
(1)	Graglia: too minute?  She’s obviously interested enough to take it all the way to the Supreme Court; court should say that hearing her claim is impractical
c)	Court also says a taxpayer may have standing to sue a municipality, because her interest would be more direct
(1)	Graglia: illogical – Ross Perot’s share of the federal budget is bigger than Graglia’s share of Austin’s.
(2)	Also, her interest is not an economic one – she doesn’t want the government acting unconstitutionally
d)	The real importance of this case is that it precluded a bunch of constitutional challenges by taxpayers based on improper spending
2.	United States v. Butler (1936) (unconstitutional)
a)	Agricultural Adjustment Act gave farmers money to not grow crops (farm subsidies), the idea being to keep prices propped up
b)	The Power to Spend – it is clearly implicit that the power to tax confers the power to spend, but on what?
(1)	Madison Theory – Can only spend on things within the enumerated powers (e.g., it can only spend where it can regulate)
(2)	Hamilton/Story – Power to spend is separate and independent from the enumerated powers, the only restriction being spending must be for the ‘general welfare’
(3)	Court says it is adopting the Hamilton view, but in reality the holding adopts the Madison view
c)	Court says this act isn’t voluntary – that it is a coercion of individuals
(1)	Graglia: is it really?  Is it any more coercive than paying the kid across the street $10 to mow the lawn?
(a)	It could be argued that the virtually unlimited spending power of the government makes spending all power (magnitude makes it so)
(i)	But is it?  If taxes get too high (to support the spending), taxpayers vote people out of office
(2)	Even if a farmer refuses the subsidy, he’s still better off because others have – he can sell at higher prices than he would be able to otherwise
3.	Steward Machine Co. v. Davis (1937)
a)	As part of the Social Security law, an employer that pays into a state unemployment fund can receives up to 90% of his federal payments back; employer sues, saying the law coerces states into passing unemployment insurance laws
b)	Court says the law is valid in view of the need to combat unemployment, a federal problem
(1)	Might also distinguish on basis that Congress is really taxing (not spending) – the rebate is just a reduction in tax.  (this becomes meaningless later, though)
4.	Helvering v. Davis (1937)
a)	Social Security Act is challenged on 10th amendment grounds
b)	Court basically says that Congress can spend for the “general welfare” and that what the general welfare means is determined by Congress (and not the states, and not the courts)
5.	South Dakota v. Dole (1987)
a)	Act withholds 5% of federal highway funds for states that do not have a minimum drinking age of 21
b)	South Dakota attacks the act as an invasion of its powers under the 10th and 21st amendments
c)	Court establishes four-part test for spending measures to be constitutional (SD only challenges on #4) The act must:
(1)	Be for the “general welfare”
(2)	The conditions must be unambiguous
(3)	The conditions must be related to the federal interest in the project
(a)	O’Conner (dissent) – how is drinking age related to highway construction? (Madisonian view)
(i)	Court would reply that it’s related to highways generally – e.g., safe interstate travel
(a)	O’Conner would counter that this is over- and under-inclusive (over because it deters teens who aren’t driving from drinking, and under because it doesn’t stop adults from driving drunk)
(4)	The measure doesn’t violate other constitutional provisions (e.g., can’t induce states to pass laws that would violate an individual’s constitutional rights)
d)	Graglia: there is therefore no effective limit on the spending power – the only real limits are voter-imposed (e.g., the ballot box constrains spending)
VI.	Individual Rights
A.	Generally
1.	Graglia: a “right” means a prohibition of a policy choice
B.	Pre-Civil War History
1.	Individual Rights in the Constitution Itself (not amendments)
a)	Article I, Sec. 9 – Federal Legislature
(1)	Privilege of Writ of Habeas Corpus – If you are put in jail, you have the right to have the court pass on the validity of your imprisonment
(2)	No Bill of Attainder – Legislature cannot condemn individuals (only the courts can via criminal trials)
(3)	No Ex Post Facto Law – Can’t make an act criminal retroactively
b)	Article 1, Sec. 10 – State Legislatures (much fewer than feds)
(1)	No Bills of Attainder or Ex Post Facto Laws (see supra)
(2)	No law impairing obligations of contracts (so states can’t pass a law forgiving farmer’s debts)
(3)	You might include the dormant commerce clause 
c)	Article III, Sec. 3 – The Judiciary
(1)	All crimes except impeachment to be tried by a jury
(2)	Treason (levying war against U.S. or adhering to its enemies) requires two witnesses or a confession in open court
(3)	Puishment for treason limited to killing the guy (e.g., no drawing and quartering); no corruption of blood (can’t pursue the guy’s family); and no forfeitures
d)	Article IV, Sec. 2 – Privileges and Immunities – Out of state people have same rights as citizens of the state
(1)	Graglia: there is still some permissible discrimination, though – for instance, Texas residents pay less to go to UT Law School.  Why?  Fairness – Texas tax dollars support UT.
e)	Article VI, cl. 3 – No religious tests for qualification for public office
2.	The Bill of Rights
a)	Madison – a fox if there ever was one – agreed to put in the Bill of Rights to appease the anti-federalists, then wrote them himself.
(1)	Initially, he wrote in the Federalist Papers that the Bill of Rights wasn’t necessary 
(a)	Federalism was the ultimate protection because it limits the government’s power
(b)	To have such a provision would imply the government could impose restrictions if the provision wasn’t there
(2)	Instead, he wrote a Bill of Rights that was far less expansive than Patrick Henry and the anti-federalists wanted (the one Madison wrote was mostly just concerned with criminal procedure)
b)	The Bill of Rights (Graglia: “mere aphorisms” – note how puny they are when contrasted with similar documents in other nations)
(1)	Free Speech, Religion, Press, Assembly (substantive)
(2)	Right to Bear Arms (substantive)
(3)	No quartering soldiers (pointless)
(4)	Search and Seizure (criminal)
(5)	Catch-All (mostly criminal, except maybe e)
(a)	Grand Jury Indictment
(b)	Double Jeopardy
(c)	Self-incrimination
(d)	Due Process
(e)	Takings without compensation
(6)	Right to jury trial for criminal matters (criminal; restatement of Article III, Section 2)
(7)	Jury trial for civil matters over $20 (pointless; Graglia: just $20?  Isn’t that dumb?  That’s no limit at all!)
(8)	Excessive bail and cruel & unusual punishment (criminal)
(9)	9 and 10 don’t protect any individual rights specifically
c)	The Bill of Rights was not applicable to the states when written
3.	Barron v. Baltimore (1833)
a)	Barron sues because he claims the city of Baltimore took is property without compensation in violation of the 5th amendment
b)	Court says 5th amendment (and all the others) only apply to the federal government
(1)	Textual Argument
(a)	In the body of the Constitution where it refers to the states (in Sec. I, Art. 10), it specifically says “no state shall …” while the rest of the document refers to the federal government without specifically saying so
(b)	Also, some but not all of the same things appear in Sec. 10 that appear in Sec. 9, which seems to indicate that a different set of rules apply to the states
(c)	Therefore, general language only applies to the federal government
(2)	Therefore, if the framers of the 5th amendment wanted it to apply to the states, they would have done so in plain, unambiguous language
c)	Graglia on takings: Whenever government acts, it rearranges rights (even if it helps some people and doesn’t hurt anyone else, the parties not helped are relatively worse off).  When should it make an injured party whole?  (Graglia thinks this is one of the most fascinating questions in law)
4.	Calder v. Bull (1798)
a)	Connecticut passes a law after a hearing on a will which altered the outcome of probate (will declared invalid  CT passes law  will declared valid); Suit brought claiming this violates the ex post facto provision of the Constitution
b)	The court denies recovery, saying the ex post facto rule only applies to criminal proceedings – (cites to Blackstone, legal tradition, case law)
c)	More importantly, the court talks about natural law – the idea that some things are just wrong.  “The legislature is not omnipotent”
(1)	Graglia: then who is?  The court?  Justice Chase?  Who decides if Congress has violated this natural law?
(2)	The big problem (as Justice Iredell – a positivist – says in his concurrence) is that a natural law standard can support any position – it is not a fixed standard 
C.	The Civil War Amendments
1.	The 13th amendment was ratified immediately after the Civil War; it banned “servitude”
2.	In response, many states enacted “black codes,” which were (correctly) viewed in the north as attempts to restrict black freedom
3.	The 1866 Civil Rights Act was passed – it granted the right to own property, to make contracts, and to sue to blacks; however, President Johnson vetoed the act as unconstitutional (not a valid use of the 13th amendment’s appropriate legislation clause)
a)	Radical Republicans angered, but did not appeal because they didn’t want to leave the decision to the same court that decided Dred Scott
4.	The 14th amendment was passed so when the act was reintroduced, it would easily meet constitutional muster – in two ways:
a)	Gives Congress the power to enact legislation
b)	Makes the provisions of the 1866 act part of the Constitution
(1)	But the 14th amendment doesn’t look like the 1866 act  because the Radical Republicans enacted their whole agenda with the 14th amendment
c)	Thaddeus Stevens, the leader of the House, wanted to make the amendment ban racial discrimination outright, but that would have forced them to give the right to vote to blacks – many (even from the north) thought that was too radical
d)	Bingham – the “Madison” of the 14th amendment
e)	Structure of the 14th amendment:
(1)	Redefines “citizenship” (all people born or naturalized in the U.S. are citizens of both the U.S. and the state where they reside – dual state and federal citizenship); States can’t make laws abridging due process, equal protection, or privileges & immunities
(2)	Reduces headcount for elections by number of people who can’t vote (designed to prevent the South’s population from increasing for election purposes since blacks aren’t counted as 3/5 of a person anymore)
(3)	Revenge on the South – no one engaged in rebellion can hold high office
(4)	U.S. doesn’t have to pay South’s war debt (or anyone engaged in insurrection)
(5)	Feds can enforce this by appropriate legislation
D.	Privileges & Immunities
1.	The Slaughterhouse Cases (1872) 
a)	Action was brought by slaughterhouses challenging a Louisiana statute that gave one company the exclusive right to slaughter in the New Orleans area.  They claim 13th amendment violations and 14th amendment privileges & immunities, equal protection, and due process violations
b)	The court throws out the 13th amendment, equal protection, and due process arguments very quickly
(1)	This is not involuntary servitude (13th) – the butchers might cry “we can’t butch!” but they can always do something else
(2)	Due Process and Equal Protection don’t stick because there is plenty of precedent defining them, and this isn’t it (although the court changed all this later)
c)	What is meant by “privileges and immunities”?
(1)	Articles of Confederation – ingress/egress from states, privileges of trade or commerce, subject to all duties and restrictions as a state’s inhabitants
(2)	Corfield – all rights “fundamental, which by right belong to citizens of a free government
(a)	What does that mean?  “too tedious to list” but includes as categories protection of government, right to possess property, right to pursue happiness (all within general government restraints)
(b)	Graglia: that doesn’t mean anything (it amounts to natural law)
(3)	Ward – All rights the state governments were established to secure
(4)	Paul – Privileges and immunities common to citizens of the same state
(5)	Generally – you’ve got to give visitors the same rights you give your citizens
(a)	Graglia: sometimes clear, simple rules are really bad – what about voting in local races?  Or lower in-state tuition?  Should you have to extend those rights to visitors?
d)	The court is upset generally that the amendment – designed to protect blacks – is being used for purposes other than what was intended
(1)	Or, “hey, what are you white butchers doing here?” – this suit is just plain ridiculous
(2)	Graglia: doesn’t like the “loose drafting” of the 14th amendment – they should have limited it to race (or even just blacks) instead of “citizens” generally.  (Would’ve avoided a lot of constitutional messes)
e)	The Decision on the Privileges and Immunities argument
(1)	Privileges and Immunities only applies to national (not state) citizenship
(a)	First sentence of section 1 refers to citizens of both the U.S. and the states (implying dual citizenship)
(b)	The second sentence says that no state will deny a “citizen of the U.S.” privileges and immunities 
(c)	This means that the only privileges and immunities that cannot be abridged are those which are within the province of the federal government.  This includes:
(i)	To come to the seat of government and transact business with it
(ii)	Free access to seaports
(iii)	To demand federal protection when on the high seas
(iv)	Right to assemble, to petition for redress of grievances, and habeas corpus
(d)	Graglia’s Criticism
(i)	The textual argument is wrong – the first sentence was added later than the second, and no such discrepancy was intended
(ii)	The privileges and immunities they list are redundant – they are all secured elsewhere in the constitution, within the 13th and 15th amendments, or elsewhere within the 14th amendment.  This makes the privileges and immunities clause in the 14th amendment useless 
(a)	Why? The privileges & immunities clause protects everything or it protects nothing.  If the court held otherwise, it would mean Congress would have all power for civil rights and that the court would have to rule on every state law
(b)	Thus, the privileges and immunities clause has been – and is – dead in the water.  No law has ever been invalidated because of it (except one, and it was quickly overturned)
(i)	This is mostly because equal protection and due process have taken up the slack
f)	Field’s Dissent
(1)	Says no statute which violates “abstract justice” is valid
(a)	Graglia: this is another appeal to natural law.  Again, the problem is, who decides what “principles of abstract justice” are?
(2)	Says this act is just a grant of a special privilege, and is thus just a special interest law
(a)	Graglia: So?  Isn’t that just politics?  Most laws protect one interest over another (remember oleomargarine?).  To allow the court to decide on this would be to allow them to decide the which laws are good and which are bad (e.g., not just their constitutional validity)
E.	Due Process
1.	Magna Charta (1215) – extracted power from King John 
a)	Chapter 39 (most famous) – “no freeman will be deseized of his… [property]… without the judgment of his peers or by the law of the land (e.g., due process)
b)	Thus, due process = doing things by the “law of the land” (e.g., a procedural rule)
2.	Lord Coke – due process means the same as the law of the land
3.	The 14th amendment – marks the first time that due process is used in place of “the law of the land”
a)	Also note that due process (and equal protection) in the 14th amendment apply “to persons” (not citizens) so there is not the same problem that existed with privileges and immunities in The Slaughterhouse Cases  
4.	Murray v. Hoboken Land & Improvement Co. (1855)
a)	Held that the legislature cannot adopt just any law – you need more than the “mere will” of Congress
(1)	Graglia: Isn’t every law the “mere will” of Congress?  If not, what else?  The will of the court?
b)	Must check to see if the law
(1)	Conforms with the consitution
(a)	Graglia: that’s redundant – if the 5th amendment means that, it’s redundant given judicial review is based on Art. VI
(2)	Conforms with settled usage and mode of English statutes and common law
(a)	Graglia: that’s dumb – why freeze the law to 1791 standards (especially since it was hyper-technical back then)?
5.	The “Lochner Era”
a)	Lochner greatly expanded due process, dividing it as such:
(1)	Procedural due process – was legal procedure followed?  (Was the law fair in its application?)
(a)	Graglia: redundant – due process means procedures were followed
(2)	Substantive due process – is the law itself fair and reasonable itself?  (concept is mentioned implicitly in Calder v. Bull)
(a)	Graglia: oxymoronic – since due process means application of the law
b)	Hurtado – California Law challenged because it doesn’t require a grand jury indictment (which is required by English common law and is written in the 5th amendment)
(1)	Court says that’s OK – it rejects Murray’s requirements; it holds that procedures must be “fair and just”
(a)	Graglia: what the hell does that mean?
(b)	Note the same rationale can make the self-incrimination privilege and jury right unnecessary, even though they are part of the English common law
c)	Powell v. Alabama (Scottsborough boys case) – Nine black boys accused of raping a white woman.  Evidence shows they couldn’t have, but they are convicted anyway and sentenced to die (creating an international scandal)
(1)	The court has no legal reason to reverse (all procedures were followed); they reverse anyway, saying the right to counsel for an illiterate in a capital case means not only counsel but good counsel
(a)	Graglia: there is no actual basis for this – the court just applies natural law
(i)	The 6th amendment (when written) didn’t mean the state would provide counsel – it meant the right to hire counsel (which was not guaranteed by English law)
(b)	Side note: on retrial (with great counsel – who would turn down the publicity?) they lost again!
(c)	Also, Powell shows the impact race has had on the development of constitutional law (the decision in Alabama later became the law in New York)
(2)	Powell establishes that due process can require things apart from due process
6.	Palko v. Connecticut (1937)
a)	Guy is tried for 1st degree murder, is found guilty of 2nd degree murder.  The prosecutor appeals on procedural grounds; he wins a new trial.  Defendant appeals claiming double jeopardy
b)	Problem: the 5th amendment only applies to federal government, and then only in cases that involve “life or limb”
(1)	Court at this time had consistently held the 5th, 6th, and 7th amendments only applied to the federal government (the 14th did not extend them)
(2)	On the other hand, the court has said the 14th amendment applies the 1st amendment prohibitions to the states 
(a)	Holmes and Brandeis (to the court): “hey, you guys are making all this stuff up anyway, so why not extend it to speech?”  Court says “OK”
(3)	Cardozo draws the line saying that if a “principle of justice so rooted in the traditions and conscience of the people as to be ranked as fundamental,” the 14th amendment extends it to the states
(a)	Therefore, the 5th, 6th, and 7th amendments (which evidently aren’t so fundamental) are not extended; should be a “reciprocal privilege” – since defendant can appeal, so should the prosecutor [only double jeopardy if it is “shocking”
(i)	Graglia: that’s a meaningless test – really just yet another appeal to natural law 
(ii)	Double jeopardy is not a constitutional term (5th says “twice be put in jeopardy of life or limb”); in context of English law it means to be tried for the same crime under a different indictment. (Historical common law understood this to mean no second tries after a complete, accurate trial – they can try you 25 times if there is appealable error in each trial)
(b)	Cardozo also says this isn’t double jeopardy – it only applies if put in jeopardy of “life or limb”
7.	Adamson v. California (1947)
a)	Plaintiff appeals conviction, saying that California permitting the prosecutor to comment on the decision not to testify violates the 5th amendment protection against self-incrimination
b)	The court decides that the 14th amendment does not extend the 5th amendment to the states; it does, however, say that due process means the defendant should get a fair trial
(1)	Graglia: what does “fair” mean?
(2)	Is this even a violation of the right (if it was extended to the states?)
(a)	No – (as court notes) it provides no evidence of guilt; the defendant wasn’t actually forced to testify (heck, he wasn’t on the stand, right?)
(b)	Yes – “compel” means to pressure – by creating a situation where the defendant doesn’t have a real choice (both are extremely unattractive) you compel him
(i)	Graglia: but which pressures?  Requiring the defendant to appear at trial?  The prosecution putting on a strong case?  By allowing the defendant to testify (since if he doesn’t testify but can, the jury may draw inferences on their own)? This provision should be read narrowly 
c)	Frankfurter vs. Black (concurrence vs dissent)
(1)	Black (dissenter) chooses this case to announce to the world he believes the 14th amendment extends the first 8 to the states
(a)	Frankfurter: funny he just noticed.  42 of 43 (that wacko Harlan being the only exception) have consistently ruled that it does not extend the whole thing
(b)	That’s a funny meaning for due process (does due process really mean a jury right for a civil trial with more than $20 at stake?
(i)	Black actually waffles a bit here, implying that maybe this (the 7th) isn’t implied – he’s a bit embarrassed by it.  Of course, if it isn’t incorporated, we’re right back to the natural law Black claims to loathe
(c)	How can the due process clause incorporate itself?  (Both the 14th and 5th contain the terms “due process” – it’s kind of silly to say “due process” = “double jeopardy” when the two are right next to each other in the 5th [implying they mean different things]?  If full incorporation is meant, why was it not done expressly?
(d)	Why would the states do this to themselves (in ratifying the 14th)?  This isn’t what the meant – they just thought they were helping blacks
(2)	Black says: get the natural law out! – the selective incorporation of some provisions on the basis of things like “accepted notions of justice” is too subjective; full incorporation has the virtue of being objective
(a)	Graglia: of course, the expansive view the court has taken of the Bill of Rights proves the objectivity Black wants is simply not present
(3)	Graglia: both justices are better at refuting the other than establishing their own case.  
(a)	Black is right that the natural law standard is meaningless; 
(b)	Frankfurter is right that the author’s statements aren’t what was ratified, the text is what was ratified (Black quoted Bingham to get intent); also, it is illogical that the states would restrict themselves
8.	Duncan v. Louisiana (1968)
a)	Black convicted of simple battery for slapping a white; he is tried without a jury; he appeals
b)	The court held that a jury was a fundamental right (“fundamental to the American scheme of justice”) and qualifies for due process protection in serious criminal cases 
(1)	In essence, the court takes the Palko court approach to selective incorporation, based on natural law concepts
(2)	By this time, almost all of the Bill of Rights had been extended (and then some)
c)	The court’s logical fallacy
(1)	Syllogism (the one used by the court):
(a)	Major Premise: Due process requires all things fundamental
(b)	Minor Premise: Jury trials are fundamental
(c)	Conclusion: 6th amendment jury trials are therefore required by due process
(2)	Graglia Criticism:
(a)	Logically, they should have concluded that “jury trials” are required by due process, not 6th amendment jury trials
(b)	What’s the difference?  A 6th amendment jury carries with it a lot of details – 12 jurors, unanimous verdicts.  This error makes later decisions illogical
(i)	For instance, the 6th requires a jury for all criminal cases, but here they only say it is required for serious criminal cases (seriousness being measured by length of maximum sentence)
(c)	Only Justice Fortas caught the error
d)	Black is near-gleeful; although he wanted blanket incorporation, since almost all of the Bill of Rights has been incorporated, the effect is the same
9.	Williams v. Florida (1970)
a)	Court grapples with Florida law that permits 6-person juries in noncapital cases
b)	The court upheld the Florida law as constitutional
(1)	Graglia: this is inconsistent with Duncan – if a 6th amendment jury is required for due process, then by necessity the jury must have 12 members since that is what a 6th amendment jury is
(a)	The question the court asks is “is a 12-person jury fundamental? when what they should be asking  (given their holding in Duncan) is “does the 6th amendment require 12 people?”  (and the answer is clearly yes)
(2)	A federal judge once said that a jury being composed of 12 is one of the indisputable maxims of law (e.g., a jury of less than 12 is the legal equivalent of hell freezing over)  (Graglia loves irony)
(3)	Also note that in a footnote, the court cites authority that Madison wanted the Bill of Rights to apply to the states, but his proposal never got out of the Senate
c)	Harlan’s concurring opinion – if we extend everything to the states, we water down the Bill of Rights (if the 6th amendment doesn’t require 12 for the states, why should it require 12 for the federal government?)
10.	Apodaca v. Oregon (1972)
a)	Court deals with Oregon law that permits non-unanimous verdicts (e.g., minimum 10-2 to convict)
b)	The court was sharply divided – one justice sat out, there were 4 for the majority, 3 for the dissent, and Powell
(1)	Majority – unanimous verdicts are not required by the 6th amendment
(2)	Dissent – unanimous verdicts are required by the 6th amendment
(3)	Powell – breaks rank and takes the more defensible position (he agrees with Harlan)
(a)	The 6th amendment requires a jury, but
(b)	We should be deciding what is required by due process – and due process (e.g., a fair trial) does not require a unanimous verdict
(i)	Note that the “fair trial” definition of due process is pure natural law
(ii)	If Duncan had been logically decided, this would be a valid position
c)	Graglia’s Hypo – What if this issue arose in a federal case? (Is unanimity required?)
(1)	Majority – No (6th amendment does not require)
(2)	Majority – Yes (6th amendment does require)
(3)	Powell – Yes (“nothing could be clearer” than that the 6th amendment requires unanimity)
11.	Lochner v. New York (1905)
a)	Court invalidates a New York labor law that puts a cap on the maximum number of hours a baker can work
b)	The court’s basis for this was that the regulation was unreasonable; this case marks the rise of substantive due process – e.g., all laws must be “reasonable” – a natural law position (here, the court says there must be a strong health reason behind such laws)
(1)	Graglia: textually, there is nothing in the Constitution that would prevent New York from passing this law; the states power’s are not enumerated, and they can do pretty much whatever they want under this general police power (ed. note: subject to constitutional restraint)
(2)	The court’s position is based on the phrase saying you can’t deprive “life, liberty, and property, without due process of law;” that is, the court says liberty has been deprived (freedom to contract) unfairly
(a)	But is this what that phrase really means?  Shouldn’t it mean you can’t deprive unless the appropriate procedures have been followed?  (e.g., procedural due process)
c)	Holmes’ Dissent (“Homes’ most famous dissent”) – Holmes basically states Graglia’s position – that a law being stupid should not make it unconstitutional
d)	Also note: this case begat the “Lochner Era,” also known as the “era of substantive economic due process”  (which the court swore off in 1937)
e)	Graglia: Roe v. Wade is just a latter-day Lochner 
12.	West Coast Hotel v. Parrish (1937)
13.	United States v. Carolene Products (1938)